An attorney for the 21-year-old Silicon Valley resident who found what appears to be Apple's prototype iPhone in a bar is expected to oppose a request by CNET and other media organizations to unseal court records relating to the investigation.

A coalition also including the Associated Press, Bloomberg News, the Los Angeles Times, and Wired.com has prepared a 7-page legal brief that will ask a court to unseal the detective's affidavit used to obtain a search warrant nearly two weeks ago. A hearing has been tentatively scheduled in the San Mateo County courthouse for 2 p.m. PDT on Thursday.

Jeff Bornstein, a criminal defense lawyer at K&L Gates in San Francisco who is representing Brian Hogan, has indicated that he will oppose the request to open records, although it wasn't clear why or on what grounds. San Mateo County prosecutors have persuaded a judge to seal all the records of the case, and that order itself also appears to be secret.

The coalition's brief (see end of story to view) says: "The search warrant records at issue here are judicial records to which the press and public have a constitutional right of access, and the order sealing these records did not--and could not--comply with the procedural and substantive requirements for sealing. The sealing order is therefore invalid and unconstitutional and should be vacated." (The California Newspaper Publishers Association and the California-based First Amendment Coalition joined the brief too.)

Thomas Nolan Jr., a criminal defense attorney from Nolan, Armstrong & Barton in Palo Alto, Calif., who is representing Gizmodo editor Jason Chen, will not oppose the media request. San Mateo County prosecutors did not immediately respond to inquiries asking whether they would fight the media group's request to unseal the affidavit and related documents.

Making those documents public could reveal whether prosecutors and Superior Court Judge Clifford Cretan considered whether journalist shield laws applied to the evening raid of Jason Chen's home last month and whether they viewed bloggers working for Gizmodo parent company Gawker Media as members of a legitimate media organization.

In general, searches of newsrooms are unlawful and can even result in police paying penalties in the form of damages to media organizations. A federal law called the Privacy Protection Act broadly immunizes news organizations from searches. A similar California law prevents judges from signing warrants that target writers for newspapers, magazines, or "other periodical publication"--a definition that a state appeals court has extended (PDF) to Apple bloggers.

On the other hand, if the news organization is suspected of a crime, a search of its newsroom or its employees' home offices could be permissible. The federal Privacy Protection Act includes some exceptions for criminal activity. In California, although the anti-search law does not have an explicit exception, at least one court has suggested that the protections do not extend to journalists suspected of a crime.

Gawker Media has called the search warrant "invalid," and an attorney representing the blog network said last week that the option of a lawsuit "is available because search is not the appropriate method in this situation."

Roger Myers, a partner at Holme Roberts and Owen in San Francisco, drafted the brief for the media organizations. Myers has led other attempts to keep court hearings open in California, including representing CNET (published by CBS Interactive), Wired.com, and the First Amendment Coalition in a lawsuit involving AT&T and allegations of illegal wiretapping.

California law says that search warrants "shall be open to the public as a judicial record" no later than 10 days after a judge signs it, which would have been Monday.

The media organizations argue this conflicts with precedent set by California courts. "Documents upon which the [court] bases a decision to issue a search warrant are judicial in character, for the decision to issue a search warrant is a judicial decision," a state appeals court has ruled, saying public access to those records is important because it "fosters important policy considerations, such as discouraging perjury, enhancing police and prosecutorial performance, and promoting a public perception of fairness." The U.S. Constitution's First Amendment and the California Constitution provide a broad right to access to court records.

The search warrant affidavit was prepared by Detective Matthew Broad of San Mateo County Sheriff's Office.

Background

The story began in March when Gray Powell, a 27-year-old Apple computer engineer, forgot what may be a 4G iPhone phone at a German beer garden in Redwood City, Calif., after a night of drinking. According to a Wired.com report on Thursday, Brian Hogan acknowledged finding the phone. With the help of friends, Hogan allegedly approached multiple tech news sites before finally selling the handset to Gizmodo for $5,000. (Sage Robert Wallower, a 27-year-old University of California at Berkeley student, was allegedly one of those friends who contacted technology sites.)

An assistant for Bornstein, who is representing Hogan, said on Wednesday that the office has not yet received the media coalition's brief.

Prosecutors in the case say they are conducting a felony theft investigation, but no charges have been filed. Police have interviewed Hogan and one other unidentified man in connection with the sale to Gizmodo.

On April 23, just hours after CNET reported that Apple had contacted law enforcement officials about the phone and an investigation was underway, police showed up at Chen's home in Fremont, Calif., across the bay from San Francisco. After breaking down his door, they confiscated three Apple laptops, a Samsung digital camera, a 32GB Apple iPad, a 16GB iPhone, and other electronic gear according to documents that Gizmodo posted.

Apple ranks among the most security-conscious companies and goes to great lengths to prevent leaks about its products. To secure trade secrets, the company has not shied away from high-profile courtroom fights. It filed a lawsuit against a Mac enthusiast Web site Think Secret, for example, to unearth information about a leak. A state appeals court ruled in favor of the Web site.

In that case, Apple argued that information published about unreleased products causes it significant harm. "If these trade secrets are revealed, competitors can anticipate and counter Apple's business strategy, and Apple loses control over the timing and publicity for its product launches," Apple wrote in a brief.

Update 5:50 p.m. PT Wednesday: We just received a copy of a statement that Jeff Bornstein, the criminal defense attorney representing Brian Hogan, the fellow who found the iPhone prototype, sent to Judge Stephen Hall this afternoon. Bornstein says: "We have not had an opportunity to review the search warrant affidavit. Our interest is in assuring that Brian is treated fairly. Without knowing what information the search warrant contains, we are not in a position to evaluate whether the search warrant should remain under seal. We would appreciate the opportunity to review the search warrant records before having to take a position on the merits." The media coalition's position is that because 10 days have elapsed, the search warrant documents are accessible to the public.

About the author

Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
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Greg Sandoval covers media and digital entertainment for CNET News. Based in New York, Sandoval is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at @sandoCNET.
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